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Surrogate mother fights for Sh3 million as couple refuses to honour deal
Expectant surrogate mother and commissioning parents. Despite surrogacy being a widely resorted-to method for treating infertility, the absence of clear legal frameworks has led to ambiguity and challenges in addressing the rights and responsibilities of all parties involved.
What you need to know:
- Without clear laws, surrogates in Kenya rely on contracts, leaving women vulnerable when parents refuse payment.
- Surrogacy disputes highlight Kenya’s legal vacuum, forcing surrogate mothers to fight for justice through civil courts.
Dear Vivian,
I became a surrogate for a couple a year ago. Before the process, we signed a written agreement stating that I would receive Sh3 million after delivery. I fulfilled my part and handed over the child, but since then, the couple has refused to honour the agreement. They are still in Kenya, but they have become unreachable and whenever I attempt to follow up, they threaten me. Do I have any legal rights under Kenyan law?
Emily Mukundi,
Nakuru
Dear Emily,
Surrogacy, an arrangement where a woman (surrogate) carries and delivers a child for another person or couple (intended parents), has emerged as a significant option for those facing infertility or other barriers to traditional childbearing. Currently, no law in Kenya regulates surrogacy arrangements. Most parties, who opt for surrogacy, operate under the Law of Contract Act.
Notably, Parliament has not passed legislation to address how surrogacy contracts should be structured, how rights of the surrogate mother are protected, or how disputes should be resolved. The Assisted Reproductive Technology Bill, sponsored by Suba North MP Millie Odhiambo Mabona has been a significant step towards the recognition and legalisation of surrogacy.
Since you signed a written agreement, the promise of payment becomes a contractual obligation. Under the Law of Contract Act, once parties sign an agreement voluntarily, each party is bound to perform their part. If one party fails, that is breach of contract, and the injured party has a right to seek relief in court. In this case, the couple’s refusal to pay the agreed sum after you delivered the baby amounts to a breach. Therefore, you are entitled to file a civil claim in court to enforce the agreement and recover the money owed.
Consequently, threatening you and your family amounts to a criminal offence. The Penal Code prohibits intimidation, harassment, and threats to life or safety. You should report these incidents at the nearest police station and ensure they are recorded in an occurrence book. This creates a formal record and allows the police to investigate. If sufficient evidence exists, the couple can face criminal charges alongside the civil claim.
First, you should keep the written agreement safe. Make certified copies for use in court and for your own reference. Secondly, collect evidence of threats, including text messages, call logs, or witness accounts. You should then proceed to report the threats to the police and request immediate protection.
In a similar matter, a court held that in cases of surrogacy, the surrogate mother shall be registered as the mother of a born child pending legal proceedings to transfer legal parenthood to the commissioning parents. The court further affirmed that Kenya requires a law to regulate surrogate arrangements to protect all parties involved.
Finally, you should seek the services of a qualified lawyer to file a civil suit for breach of contract. If you cannot afford one, you can seek legal aid from human rights organisations such as Fida-Kenya or the Cradle-The Children Foundation.
Vivian
The writer is an Advocate of the High Court of Kenya and award-winning Civil Society lawyer. [email protected]
